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Immigration Law
Wayne State University Law School
Weinberg, Jonathan T.

Immigration & Nationality Law
Weinberg
Fall 2010
I. Citizenship
a. Constitution & Closure
*The original Constitution includes no definition of citizenship, but the status clearly had some significance (e.g., citizenship as qualification for presidency, election to Congress, Congress’ authority to adopt uniform rules of naturalization).
*Congress adopted rules for naturalization in 1790, leaving the question of citizenship of Indians, blacks, and children of immigrants unanswered. This decision was left to SCOTUS; in the infamous Dred Scott case, the Court held that free blacks born in the U.S. were not citizens.
*1866 CRA (all persons born in the U.S. and not subject to any foreign power) & § 1 of the 14th Amendment (all persons born or naturalized in the U.S., and subject to the jurisdiction thereof, are citizens of the U.S.).
*What rights? The Slaughterhouse Cases gutted the privileges and immunities clause for citizens, leaving the other major protections – due process and equal protection – available to “any person,” not “citizen.”
*What significance is possession of Am. citizenship? Graham v. Richardson – the very distinction between citizen & non-citizen amounts to a suspect classification,” which requires heightened judicial review. But Congress must have thought citizenship meant something when it drafted the first sentence of the 14th Amendment.
*Burbaker, “citizenship is both the instrument (prerequisite for enjoyment of certain rights, for participation in certain types of interaction) & object (a status to which access is restricted) of closure.” Ltd. benefits of citizenship:
            –Citizens can come and go freely.
            –Citizens can vote (15th, 19th, 24th, 26th Amendment)
            –Societal roles & Loyalty? What about limited resources?
–“Club notion” inherent in modern nation-state, which claims to derive state power from a popular sovereignty and exercise it for a bounded nation.
*Citizenship is circular. Free access to territory is reserved for citizens; and access to citizenship is reserved for persons meeting qualifying conditions. Qualifying conditions usually include residence in the territory. “Only citizens enjoy free access to the territory, yet only residents have access to citizenship.”
b. Jus soli
*In Elk v. Wilkins, the Court held that native Indians were not U.S. citizens. The Court read “subject to the jurisdiction thereof” as meaning “not merely subject to some degree of jurisdiction, but completely subject to their political jurisdiction, and owing them … allegiance.”
*In United States v. Wong Kim Ark, the Court queried whether a child born in the U.S. to parents of Chinese descent, who owe allegiance to the Emperor of China, but who are not employed by him in any official capacity, becomes a U.S. citizen by virtue of the 14th Amend.
–Principle of English CL is jus soli citizenship, with the exception of foreign ambassadors, or children of born of alien enemies.
–Civil Rights Act of 1866 & 14th Amendment ((a)though directed at freed slaves, not race specific; (b) does not impose restrictions on citizenship, imposes restrictions on govt.; (c) consistent with Elks which was concerned with “Indians not taxed,” and not political jurisdiction per se).
–Notes Wong Kim’s parents inability to naturalize has no bearing on jus soli citizenship. Constitution confers upon Congress the power to grant citizenship, but not take it away.
c. Jus sanguinis
*INA § 301(c), (d), (e), (g), (h); § 308(2), (4); and § 309. If both parents are citizens, the child acquires citizenship at birth, provided that one of the parents had residence (the place of general abode – principal dwelling place in fact) in the U.S. at sometime prior. § 301(c).
*If one parent is a non-citizen, then the citizen parent must have been physically present in the U.S. for a total of five years before the birth, including at least two years after the age of fourteen. § 301(g).
*INA §§ 301(c) & (g) apply to a person born out-of-wedlock if (1) the blood relationship between the person and the father is established by clear and convincing evidence, (2) the father had the nationality of the U.S. at the time of birth, (3) the father (unless deceased) agreed in writing to provide financial support until the person is 18, and (4) while the person is under 18, the person is legitimated under the law of the person’s residence, the father acknowledges paternity in writing under oath, or paternity is established by adjudication. § 309(a)(1)-(4). A person born out-of-wedlock to a citizen mother, shall acquire her citizenship if prior to birth the mother had been previously physically present in the U.S. for one [1] continuous year. § 309(c).
–But see INA § 320, which grants citizenship to children born outside of the U.S. when (1) at least one parent is a citizen (by birth or naturalization), (2) the child is under 18, and (3) the child is residing in the U.S. in the legal & physical custody of the citizen parent as an LPR.
*Gender discrimination.
–Nguyen v. INS (2001) (LPR claims requirements of § 309 discriminate between men and women). Citizen father/non-citizen mother & vice-versa (if married): physically present for total of five years. Citizen father/non-citizen mother (if unwed): reqs. in § 309(a). Citizen mother/non-citizen father (if unwed): physically present for one [1] continuous year.
–Important govt. interests: (a) importance of assuring bona-fide biological parent-child relationship exists. (Fathers & mothers not similarly situated; fathers need more proof). (b) ensuring child and father have opportunity to develop “real, everyday ties.” (Court concerned with active military, ease of travel to foreign nations).
–Substantial relation: (a) deference to Congress: opportunity to develop ties furthered by provisions that requires acts linking father and child before age 18. (b) § 309(a)(4) does not reflect stereotypes of men & women by assuming women are more likely than men to establish a relationship with the child, b/c that provision only seeks to offer an opportunity, not an actual relationship.
–Concurrence: (a) It is difficult to see what § 309(a)(4) accomplish

ian groups, and those who advocate the overthrow of the U.S. govt. by force or violence or other unconstitutional means cannot naturalize. INA § 313(a)(4) (there are exceptions for involuntary membership, termination of membership before age 16, membership by law or for obtaining food or other essentials, or if 10 years have passed). INA § 314 permanently excludes persons who defected from the military or dodged a draft.
viii. Oath of Allegiance. INA § 337(a).
II. Immigration Power
a. Constitutional Sources
            *No express language granting Congress power to control immigration.
*In 1882, Congress enacted the Chinese exclusion laws, and these became the first immigration statutes to be subjected to judicial scrutiny. Some background. 1868 – U.S. signs Burlingame Treaty with China, accepting Chinese immigration; 1880 – supplemental treaty allowing U.S. to “regulate, limit or suspend” immigration of Chinese laborers, but also allowing Chinese already in U.S. to “come and go” freely; 1882 – moratorium on Chinese immigration, requiring laborers to show certificate that they had been to the U.S. before 1880, and exempting merchants, teachers, and students. Courts were lax with the certificate standards, but in 1884 Congress made them mandatory. 1888 Scott Act barred Chinese immigrants’ return even with a certificate.
*Chae Chan Ping v. United States (Chae Chan Ping alleges the Scott Act violated the Constitution and conflicted with the Burlingame & supplemental treaties). Court concedes Scott Act violates previous treaties, but does not think it controversial that “the govt. of the U.S., through the action of the legislative dept., can exclude aliens from its territory.”
–Every nation has the power to exclude other nations that are dangerous to its peace and security. The existence of this power is involved in the right of self-preservation.
–Nat’l interests embrace foreign relations, which are the business of the executive branch, not the judicial branch. China can appeal to the political dept. directly.
*Yick Wo v. Hopkins (Court extends “equal protection” to non-citizens and non-negroes). The Chinese Exclusion Cases involved an immigration question – a non-citizen’s right to enter the U.S.; Yick Wo involved an allegation of discrimination against non-citizens in the U.S., but not a challenge to exclude or expel them. Our constitutional law relating to immigration differs from our constitutional law relating to non-citizen immigrants.